People v Alvarez (Donaldo)

[*1] People v Alvarez (Donaldo) 2015 NY Slip Op 51448(U) Decided on September 29, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : GARGUILO, J.P., MARANO and CONNOLLY, JJ.
2013-963 S CR

The People of the State of New York, Appellant,

against

Donaldo E. Alvarez, Respondent.

Appeal from an order of the Justice Court of the Village of Westhampton Beach, Suffolk County (Robert A. Kelly, Jr., J.), dated February 7, 2013. The order granted defendant's motion, pursuant to CPL 440.10 (1) (h), to vacate a judgment convicting him of driving while intoxicated per se.

ORDERED that the order is reversed, on the law, and defendant's motion to vacate the judgment convicting him of driving while intoxicated per se is denied.

Defendant, a native of El Salvador, arrived in the United States in 1992, and was granted temporary protective status pursuant to section 244 of the Immigration and Nationality Act (8 USC § 1254). On July 5, 2004, defendant was arrested on Suffolk County Road 31 in the Village of Westhampton Beach, and charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and speeding (Vehicle and Traffic Law § 1180 [d] [1]). On October 13, 2004, defendant pleaded guilty to driving while intoxicated per se, a misdemeanor, and was sentenced to a conditional discharge.

In 2012, defendant moved, pursuant to CPL 440.10 (1) (h), to vacate his judgment of conviction, on the ground that his attorney at the 2004 plea did not provide him with effective assistance of counsel, because he did not advise him of the potential immigration and deportation consequences of his plea, in accordance with Padilla v Kentucky (559 US 356 [2010]). He asserted that his conviction of misdemeanor driving while intoxicated subjected him to deportation in the event he were convicted of a second misdemeanor, and that had he been aware of this potential consequence, he would not have pleaded guilty and would have risked a jail sentence to avoid deportation.

In an order dated February 7, 2013, the Justice Court granted defendant's motion, relying on Padilla. The court determined that defendant would not have pleaded guilty in 2004 had he known of the potential deportation consequences of the plea. The People appeal from the order pursuant to CPL 450.20 (5).

In Chaidez v United States (568 US , 133 S Ct 1103, 1111 [2013]), the Supreme Court determined that Padilla announced a "new rule," and thus did not apply retroactively for purposes of federal collateral review. In People v Baret (23 NY3d 777, 782 [2014]), the Court of Appeals determined that Padilla should not be applied retroactively in "state court postconviction proceedings." Consequently, with respect to convictions that became "final" before Padilla was [*2]decided, such as is the case with defendant's conviction, the Court of Appeals determined that the failure of counsel to advise a defendant of the immigration consequences of a plea did not constitute the ineffective assistance of counsel (see also People v Ford, 86 NY2d 397, 404 [1995]; People v Taylor, 124 AD3d 807 [2015] [the failure of counsel to inform non-citizen defendants of the immigration and deportation consequences of guilty pleas does not constitute ineffective assistance of counsel under the United States or New York State Constitutions]; People v Chacko, 119 AD3d 955 [2014] [same]).

Accordingly, the order is reversed and defendant's motion to vacate the judgment convicting him of driving while intoxicated per se is denied.

Garguilo, J.P., Marano and Connolly, JJ., concur.

Decision Date: September 29, 2015